Stevens v Professional Helicopter Services Pty Ltd; Stryker Australia Pty Ltd v Professional Helicopter Services Pty Ltd

[2020] NSWSC 1443

Supreme Court

New South Wales

Medium Neutral Citation:

Stevens v Professional Helicopter Services Pty Ltd; Stryker Australia Pty Ltd v Professional Helicopter Services Pty Ltd [2020] NSWSC 1443

Hearing dates:

28 September 2020

Date of orders:

20 October 2020

Decision date:

20 October 2020

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

(1) The separate question to be determined is answered as follows: Any liability in respect of the injuries sustained by the plaintiff arises only under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), and is in substitution for any civil liability of the defendant under the general common law.

(2)   Costs of the Notices of Motion are to be each party’s costs in the proceedings.

(3)   The listing of the matter before the Registrar today for directions is noted. The balance of the file is to be provided by my Chambers to the Registrar forthwith.

Catchwords:

CIVIL LAW – resolution of separate question – helicopter flight which crashed – severe injuries to passenger – whether Commonwealth Civil Aviation (Carriers’ Liability) Act 1959 applies – ‘joy flight” – flight departing from and returning to same place – whether single point of departure and landing precludes the operation of the Act – construction of s 27(1)(c) – whether a textual or purposive construction should be made – basis of liability – whether pursuant to the Act or under common law

Legislation Cited:

Civil Aviation (Carriers’ Liability) Act 1959 (Cth)

Civil Aviation (Carriers’ Liability) Act 1967 (NSW)

Civil Aviation (Carriers’ Liability) Act 1961 (Vic).

Hague Protocol

Guadaljara Convention

Montreal Convention 1999

Montreal Protocol No 4

Warsaw Convention 1929

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41

Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3

Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297; [1981] HCA 26

Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76

Jacob v Mount Beauty Gliding Club Inc (2004) VSC 103

Mount Beauty Gliding Club Inc v Jacob (2004) 10 VR 312; [2004] VSCA 151

Parkes Shire Council v South West Helicopters Pty Ltd (2019) 266 CLR 212; [2019] HCA 14

Category:

Principal judgment

Parties:

Jay David Stevens (First Plaintiff)
Stryker Australia Pty Limited (Second Plaintiff)
Professional Helicopter Services Pty Ltd (Defendant)

Representation:

Counsel:
J E Sexton SC (First Plaintiff)
P Morris SC (Second Plaintiff)
D A Lloyd (Defendant)

Solicitors:
Carroll & O’Dea Lawyers (First Plaintiff)
Stiles Lawyers (Second Plaintiff)
GSG Legal (Defendant)

File Number(s):

2019/403399;
2020/15642

Publication restriction:

Nil.

Judgment

1. On 17 January 2018, a helicopter in which the plaintiff, Mr Jay Stevens, was a passenger, took off from a helipad near Uluru (or Ayres Rock) for a 15 minute scenic flight about the environs of the Rock. It was intended that the helicopter land at the same helipad from which it had departed, once the passengers had had an opportunity to see Uluru from the air. Instead, some minutes into the flight, the helicopter rapidly lost height, and crashed to the ground. Mr Stevens suffered severe injuries, including paraplegia. The helicopter was operated by the defendant, Professional Helicopter Services Pty Ltd (“PHS”).

2. By Statement of Claim (“SOC”) filed in the Registry of this Court on 23 December 2019, Mr Stevens brings proceedings against the defendant for damages:

1. “as a damages action at common law for personal injuries caused by the defendant’s negligence, (“Plaintiff’s First Cause of Action”) and

2. in the alternative, and only if the First Cause of Action is not sustainable in law, as an action for damages under the provisions of the Civil Aviation (Carriers Liability) Act 1959 (Cth) (“Plaintiff’s Second Alternative Cause of Action”).”

3. The second plaintiff, Stryker Australia Pty Ltd (“Stryker”), was Mr Stevens’ employer at the time of the crash. It had been Stryker that had arranged for Mr Stevens and others to take the flight that day, as a reward for achievement in the course of employment. Since the crash, Stryker has paid Mr Stevens’ wages, together with his medical and related expenses. By SOC filed on 16 January 2020, Stryker claims indemnity against the defendant for its losses in that regard, pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW).

4. On 13 February 2020, Mr Stevens filed a Notice of Motion (“NOM”) in which he asks the Court to decide separately from any other question in the proceedings, the question of the basis of the defendant’s liability. On the same day Stryker also filed a NOM, seeking the same order.

5. The order sought by Mr Stevens and Stryker is:

1. An order pursuant to UCPR 28.2, 28.3 and 28.4 that the Court decide separately from any other question in the proceedings, the question of whether any liability in respect of the injuries sustained by the plaintiff arises under the Civil Aviation (Carrier’s Liability) Act 1959 (Cth) and is in substitution for any civil liberty of the defendant under the general common law.

6. The question is an important one because, if the defendant’s liability arises under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“the CACL Act”) rather than under the common law, the damages that Mr Stevens might be awarded are limited by operation of s 31 of the CACL Act. At common law, damages are at large.

7. The question turns on the construction of s 27 of the CACL Act. The provision is in these terms:

27 Application of Part

(1) This Part applies to the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations, or in an aircraft being operated in the course of trade and commerce between Australia and another country, under a contract for the carriage of the passenger:

(a) between a place in a State and a place in another State;

(b) between a place in a Territory and a place in Australia outside that Territory;

(c) between a place in a Territory and another place in that Territory; or

(d) between a place in Australia and a place outside Australia;

not being carriage to which the 1999 Montreal Convention, the Warsaw Convention, the Hague Protocol, the Montreal Protocol No. 4 or the Guadalajara Convention applies.

(3) For the purposes of this section, where, under a contract of carriage, the carriage is to begin and end in the one State or Territory (whether at the one place or not) but is to include a landing or landings at a place or places outside that State or Territory, the carriage shall be deemed to be carriage between the place where the carriage begins and that landing place, or such one of those landing places as is most distant from the place where the carriage begins, as the case may be.

(4) For the purposes of this section, where:

(a) the carriage of a passenger between two places is to be performed by two or more carriers in successive stages;

(b) the carriage has been regarded by the parties as a single operation, whether it has been agreed upon by a single contract or by two or more contracts; and

(c) this Part would apply to that carriage if it were to be performed by a single carrier under a single contract;

this Part applies in relation to a part of that carriage notwithstanding that that part consists of carriage between a place in a State and a place in the same State.

The Background Facts and Issues

8. A joint statement of facts and issues was provided to the Court for present purposes. The following is drawn from it.

9. On 17 January 2018, PHS was a company duly incorporated in Australia capable of being sued in its corporate name. It owned and operated a single-engine Robinson R44 helicopter, and was the holder of a “charter license” under its Air Operator’s Certificate and a “domestic carrier” in the course of “commercial transport operations” for the purposes of the CACL Act.

10. Mr Stevens was an employee of Stryker. His passage on board the helicopter operated by PHS was pursuant to a contract for carriage, for the purposes of the CACL Act, entered into between PHS and Stryker, on behalf of Mr Stevens.

11. The contract for carriage was for a flight that began from a helipad in the township of Yulara, circumnavigated Uluru without landing, and returned to the same helipad in Yulara, where the flight was to end.

12. The parties agree that none of the 1999 Montreal Convention; the Warsaw Convention; the Hague Protocol; the Guadaljara Convention; the Montreal No 4 Convention; or the Montreal Protocol No 4, as defined in the CACL Act, applied to the carriage.

13. Shortly after its take-off from the helipad at Yulara on 17 January 2018, the helicopter crashed, and Mr Stevens was injured.

The Submissions of the Parties

The Plaintiff’s Submissions - Mr Stevens

14. Mr Stevens contends that s 27 of the CACL Act, properly construed, makes clear that Part IV of the Act does not apply to the flight on which he was a passenger, and the defendant’s liability thus arises under common law, rather than pursuant to the Act.

15. He submits that the words of s 27(1)(c) of the CACL Act are clear. It refers to a relevant carriage “between a place in a Territory and another place in that Territory” and cannot include carriage which both departs from and arrives at the same place in the Territory, with no intervening stopping place. The helicopter in which Mr Stevens was a passenger took off from the helipad at Yulara, with the intention that it would land at the same helipad after a short flight. It was not a flight pursuant to a contract for carriage from one place to another, but a contract for carriage from one place to the same place. It cannot be a flight captured by the terms of s 27.

16. Mr Stevens points to the legislative history of the CACL Act, which was passed to implement the liability regimes in the 1929 Warsaw Convention. The Convention itself was designed to protect a vulnerable industry, then in its infancy, of transporting persons and baggage in international air travel. Australia having adopted the Warsaw Convention in 1959, the CACL Act was passed to regulate liability relevant to:

“the activities of airlines involved in transportation of its passengers and baggage. Transportation involved their movement from one place to another, and contracts made by or on behalf of entities holding airline licences, particularly Australian Airlines”.

17. The plaintiff points to the reasoning of Byrne J in Jacob v Mount Beauty Gliding Club Inc (2004) VSC 103, and to the dissenting judgment of Nettle JA in the subsequent appeal decision of Mount Beauty Gliding Club Inc v Jacob (2004) 10 VR 312; [2004] VSCA 151, as representing the correct construction of a complementary Victorian state provision. It is submitted that the reasoning of Byrne J and Nettle JA is correct as to the meaning of the expression “another place”, and should be preferred to the reasoning of the majority of the Court of Appeal (Callaway JA and Buchanan JA) in the latter decision.

18. The plaintiff pointed out that Nettle JA at [42] concluded that it was not permissible to attribute to s 27(1)(c) a meaning other than the natural and ordinary meaning of its terms, and that s 27(1)(c) should be construed as applying only to contracts for carriage between two different places in a territory.

19. The plaintiff concluded that there is “no discernible legislative purpose which would displace reliance on the explicit text of the Act or specifically s 27(1) of the Act which would justify departures from what the text of s 27(1)(c) clearly states”. It was submitted that the task of statutory interpretation “must begin with a consideration of the text itself”, as emphasised by Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 and in Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3, where the primacy of the statutory text was similarly emphasised.

The Plaintiff’s Submissions- Stryker Australia Pty Ltd

20. Stryker supported and adopted the submissions made by Mr Stevens. It underlined the “reality of the fact that the words ‘between a place in a Territory and another place in that Territory’, by their natural and ordinary meaning, convey the sense that the place of embarkation and the place of destination within the Territory must be different.”

21. It was noted that the difference between the majority and minority decision in the Court of Appeal decision of Mount Beauty Gliding Club Inc v Jacob (2004) 10 VR 312; [2004] VSCA 151, turned on whether “a context or purpose in the original and in the amending enactments could be identified and, if so, whether such context and purpose could aid an interpretation which was different to the natural and ordinary meaning of words used”.

22. Stryker argued that it was the intent and purpose of the Commonwealth legislation that was relevant, as the Northern Territory falls within the ambit of the Commonwealth’s powers. The legislative intent was originally to clarify and fix the liability of airline operations for the carriage of passengers and baggage from one place to another.

23. It was submitted that there was nothing in the history of the CACL Act to suggest that “joy-flights” should fall under legislation clearly intended to govern the transportation of passengers from one place to another and regulate the commercial carriage of people from one place to another.

The Defendant’s Submissions – Professional Helicopter Services Pty Ltd

24. The defendant argued that the liability of PHS with respect to Mr Stevens’ injuries arises under the CACL Act, and that liability is in substitution for any other liability.

25. Also referring to the Victorian Court of Appeal decision in Mount Beauty, the defendant submitted that the proper construction of s 27(1)(c) is that held by the majority to be correct. It was argued that the plain words of the statute support the construction of s 27(1)(c) stated by Callaway JA at [17]. It was argued that the words of s 27(1)(c) operate by reference to the contract for carriage; the references to place are references to the places in the contract for the carriage of the passenger.

26. The defendant submitted that s 27 of the CACL Act should be given a construction which is “harmonious with the operation of the other parts of the CACL Act”, noting the High Court’s comments as to the purpose of the CACL Act as articulated in Parkes Shire Council v South West Helicopters Pty Ltd (2019) 266 CLR 212; [2019] HCA 14. The defendant contended that:

“it is clear that when the drafters of the Conventions (which the Parliament enacted as the law of Australia) used the term “place”, they intended to refer to “places” in the context of the place of departure and destination in contracts for carriage, and not to places in a geographical sense. Article 1(2) of the Warsaw Convention refers to ‘the place of departure and the place of destination’. The reference to ‘place’ in s 27(1)(c) of the CACL should be construed consistently with the way in which ‘place’ is used in the other parts of the CACL, which, as noted, apply the Conventions as Australian law’ (Footnotes omitted).”

27. The defendant pointed to the meaning of “place” as stated by Buchanan JA at [35] in Mount Beauty. There, his Honour noted that the drafters of the Conventions used the word “place” to refer to the place of departure and the place of destination in the contract for carriage. This approach, the defendant argued, was “plainly correct in light of the requirement to construe Part IV harmoniously with the other Parts of the CACL Act.”

28. The construction of s 27(1)(c) preferred by Callaway and Buchanan JJA was submitted to be consistent with and supported by other provisions in Part IV, including s 31 of the CACL Act, noting that Parliament had drawn a distinction between a ‘domestic carrier’ and a ‘carrier’ in the CACL Act (see ss 26 and 41B) and, that whether a carrier is a “domestic carrier” turns on the same question posed by s 27(1)(c) - whether a carrier is carrying a passenger pursuant to a contract for carriage “between a place in a Territory and another place in that Territory”. Ultimately, the defendant argued that the practical implication of the plaintiffs’ construction encouraged an “absurd result”, as it would mean carriers engaged in domestic carriage would not be ‘domestic carriers’ within s 26 for contracts of carriage where the destination place is the same as the departure point; and that the limit of liability of a carrier engaged in domestic carriage would be expressed in what is an international measure of payment - SDRs [special drawing rights] - for contracts of carriage where the destination place is the same as the departure point, but in Australian dollars for all other contracts for carriage falling within s 27.

29. It was submitted that “that cannot have been Parliament’s intention”. The defendant submitted that, if the plaintiffs’ construction of s 27(1)(c) stood, then it would follow that, for the purposes of s 41(C)(3), “a carrier engaged in exclusively domestic carriage would be obliged to effect insurance which may have different minimum indemnity limits, expressed in different terms, for different passengers”. The defendant pointed to “other absurd or anomalous outcomes arising from the construction of s 27(1)(c) advanced by the plaintiffs”, quoting Callaway JA at [15] and [23]. The defendant stated that “there is no rationale revealed by the text or scheme for round trip intra-territory commercial flights to be treated differently from other intra-territory commercial flights”.

30. The defendant also took issue with particular submissions made by the plaintiff, Stryker; noting that Part IV of the CACL Act applied to commercial transport operations, and that it was wrong to contend that Parliament’s intention was for joy-flights to be treated differently from other commercial transport operations, as noted by Callaway JA in Mount Beauty at [24].

31. The defendant concluded that the decision of the Victorian Court of Appeal in Mount Beauty turned on the construction of s 27 of the CACL Act operating as State law, and the principles stated in Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 at [283]-[284] should apply; that is, that this Court should only depart from the decision in Mount Beauty if it has a strong conviction that that decision is incorrect and concludes that the decision is “plainly” or “clearly” wrong. It was submitted that “the decision of the majority in Mount Beauty is not plainly or clearly wrong, and there are no compelling reasons to depart from it”.

Determination

32. Whether any liability for Mr Stevens’ injuries arises under the CACL Act, and are in substitution for any civil liability of the defendant under the common law, turns upon the question of the proper construction of s 27(1)(c) of the Act.

33. To understand the arguments, and ultimately to answer the question as to the basis of any liability the defendant may bear for Mr Stevens’ injuries and other consequential losses, it is useful to give some attention to the legislative background to the CACL Act, which has application in the Northern Territory.

34. The passage of the legislation flowed from Australia’s entry into the Warsaw Convention of 1929 and the later related international treaties. The Conventions imposed a form of liability which did not depend upon proof of negligence. They are given effect in Australia by the CACL Act. Part IV of the Act applies the principles of the Conventions to interstate air travel within Australia.

35. A number of States have passed legislation which, in turn, apply the principles to intrastate air travel. In New South Wales, the relevant legislation is the Civil Aviation (Carriers’ Liability) Act 1967 (NSW); in Victoria it is the Civil Aviation (Carriers’ Liability) Act 1961 (Vic). The state Acts generally conform to the Commonwealth legislation, although there are differences. One of those differences is in s 4 of the NSW legislation which, whilst otherwise broadly mirroring s 27(1) of the CACL Act, provide for the Act to apply to carriage “from a place in the State back to that place”.

32. Consideration of the purpose of the introduction of the CACL Act is of relevance to the argument advanced by the defendant, which contends for the correctness of a purposive construction of s 27(1)(c), as opposed to the argument of the plaintiffs, which submits that a textual construction is correct.

33. In Australian Education Union v Department of Education and Children’s Services the High Court said, at [26]–[27]:

“The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose. [….]

There are textual and purposive indicators to be considered in determining the preferred construction.”

38. That statement applied to the construction of s 27(1)(c) provides for an approach which, in this instance, pulls in quite different directions.

39. If the starting place for the construction of the provision is its text, the meaning of the text is clear: the CACL Act could only be taken as applying to flights which, satisfying the other requirements of s 27 (not in dispute here), involve travel between one place in the Northern Territory and another, geographically different, place in the Northern Territory.

40. On the basis of that textual analysis, the words “This Part applies to the carriage of a passenger […] between a place in a Territory and another place in that Territory” are clear and unambiguous; the relevant carriage is only caught by s 27(1)(c) if the flight is for carriage between one location and “another” location, that is, from point A to point B, and not from point A back to A.

41. However, that construction is called in to question by the “purposive indicators”, which point to a construction that would give effect to the overall intention of the CACL Act, to regulate all travel by flight in a consistent and uniform way, inferentially wherever the carriage may commence or terminate. That statutory purpose is derived from the scheme of the Act as a whole, which is intended to give domestic effect to the Conventions regulating international air travel.

42. Giving effect to the purpose of the legislation, even to the extent of reading into a provision a word or words which do not appear in the text, or ignoring a word or words that do, has been the approach taken in Australian jurisprudence.

43. In Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297; [1981] HCA 26, Gibbs CJ said, at 304:

“It is an elementary and fundamental principle that the object of the court, in interpreting a statute, ‘is to see what is the intention expressed by the words used’: River Wear Commissioners v. Adamson. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: cf. Cody v. J. H. Nelson Pty. Ltd. Of course, no part of a statute can be considered in isolation from its context-the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking ‘nothing remains but to give effect to the unqualified, words’: Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union. There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd. v. Cramas Properties Ltd. (Footnotes Omitted).”

44. The Chief Justice continued, at 305:

“However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that ‘it may degrade into mere judicial criticism of the propriety of the acts of the Legislature’, as Lord Moulton said in Vacher & Sons Ltd. v. London Society of Compositors; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied. (Footnotes Omitted).”

45. Mason and Wilson JJ said, in Cooper Brookes, at 320:

“The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole.”

46. Whether to give the relevant provision its clear meaning, or to construe it purposively, was the issue over which there was division between the judges constituting the Victorian Court of Appeal in Mount Beauty.

47. At first instance, Byrne J of the Victorian Supreme Court was required to construe the meaning of the complementary 1961 Victorian legislation, wherein s 4 of the state Act applied to “the carriage of a passenger” “between a place in Victoria and another place in Victoria”. His Honour took the view that the language of the Victorian provision was plain, and the relevant section, s 4 of the Victorian Act, could not apply to the carriage of a passenger between Mount Beauty and Mount Beauty. He concluded:

“that s 27(1)(c) of the Commonwealth Act deliberately excluded such flights in a Territory, that the Victorian Act was drawn with an eye to the Commonwealth legislation, that the meaning of the word ‘another’ in the expression ‘another place’ was clear and that, in 1970 when the Act was amended, Parliament could not be treated as having omitted words that were necessary to give effect to its intention. (Footnotes omitted).”

48. That interpretation, in his Honour’s assessment, precluded the legislation from application to both joy flights, taking off and returning to the same place; and round trips, taking off from one location, landing in another, and then returning to the point of origin.

49. The construction given by Byrne J to s 4 of the Victorian Act was accepted as correct by Nettle J (as his Honour then was), in the Court of Appeal decision. In his dissenting judgment, Nettle J referred to s 27 of the CACL Act, concluding that there was sound reason to consider that the legislature intended to exclude carriage beginning and ending at the same place from the application of the CACL Act. His Honour said, at [39]–[42]:

“[39] […] as drafted s 27 provided that the Act should apply within a Territory only to carriage under a contract for carriage between a place in the Territory and another place in the Territory. It is therefore tempting to think that s 27(1)(c) of the Act was intended to apply to any contract for carriage within a Territory and that the expression ‘a place … and another place’ was adopted only for the sake of consistency of style with s 27(1)(a) (and without appreciating that it might limit the operation of s 27(1)(c) to flights between two different places).

[40] As the learned trial Judge pointed out, however, s 27(3) provides a strong indication to the contrary. In that provision the parenthesis ‘(whether at the one place or not)’ is directed to flights that begin and end in a Territory. Its purpose appears to be to prevent the operation of s 27 with respect to such flights being limited by implication to flights that begin and end at different places in the Territory. Since s 27(1)(c) is really the only place from which such an implication might arise, the logical conclusion is that the draftsman did understand the ramifications of the expression ‘a place … and another place’ and used the expression advisedly.

[41] A further reason to think that s 27(1)(c) was intended to be confined to contracts for carriage between two different places in a Territory is that the opening words of s 27 restrict the operation of the section to aircraft being operated by the holders of airline licences. It suggests that the Commonwealth was directing the legislation to airline operations or, in other words, to the carriage of passengers from one place to another. There is a contrary indication in the second reading speech. It was said there that the legislation was intended to apply to ‘all domestic carriage by air within Federal competence’. But that is balanced by an observation made elsewhere in the speech that the Act was aimed at ‘domestic airline operators’.

[42] Consequently, I do not consider that it is permissible to attribute to s 27(1)(c) a meaning other than the natural and ordinary meaning of its terms. I construe s 27(1)(c) as applying only to contracts for carriage between two different places in a Territory.”

50. The majority of the Court of Appeal, however, held that the construction of the provision by Byrne J was incorrect, because it would lead to anomalous results inconsistent with the purpose of the legislation, such that the Victorian Act would apply inconsistently to air travel, dependent upon the geographical location of the points of origin and destination.

51. Callaway J gave some attention to the legislative history of the CACL Act and its Victorian counterpart, and observed that:

“The object of the legislation is to regulate carriage by air. It is flight that matters, not whether there is an intermediate landing place or intermediate disembarkation. (Footnotes omitted).”

52. Although Callaway J construed the provision by reference to text and context and not, his Honour said, by reference to Hansard, he did point to some extrinsic material that supported a purposive construction in that instance, rather than a strictly textual interpretation. He said, at [24]:

“I have not founded my conclusion on Hansard, but it should be recorded that, in the second reading speech for what became the Commonwealth Act, the Minister for Defence said, ‘Part IV extends the principles of the amended convention to all domestic carriage by air within Federal competence but with certain modifications which are considered more appropriate for domestic purposes’ (emphasis added). In the second reading speech for what became the Victorian Act, the Minister for Transport said that there was ‘some grave doubt whether these Commonwealth laws would be enforceable on journeys which commence and end within a State’, that the Commonwealth Government had suggested that the States should pass ‘complementary legislation containing penalties and concessions to passengers similar to those which apply for interstate journeys’ and that it seemed reasonable that ‘every passenger in an aeroplane, whether travelling interstate or intrastate, … should be covered regardless, by having two sets of laws, one the Commonwealth and the other the State, both covering the situation and thereby removing any doubt’ (emphasis added). The second reading speeches for the bill to amend the Commonwealth Act in 1970 expressly mentioned ‘joyrides conducted by the holders of charter licences’. There were similar references in the second reading speeches for the bill to amend the Victorian Act. (Footnotes omitted).”

53. Buchanan JA agreed in his short judgment, observing, at 324 [34]-[35]:

“[34] I have had the advantage of reading the draft judgments prepared by Callaway and Nettle, JJ.A. I agree with Callaway, J.A., for the reasons he has stated, that the appeal should be allowed.

[35] In the light of the terms of the Warsaw Convention and the Hague Protocol I see no difficulty in treating a place as both the place of departure and the place of destination of a flight, so that, in answering the second description, the place may be “another place” within the meaning of s 4 of the Civil Aviation (Carriers' Liability) Act 1961. That construction avoids denying or applying the benefits and detriments of the liability regime of the Warsaw Convention according to whether a flight ultimately returns to the point of its departure, a result which, in my view, would be anomalous.”

54. The same conclusion must be reached in the present matter, for the same reasons given by the majority in Mount Beauty.

55. Whilst there is clearly an argument that can be made in favour of interpreting a statutory provision on the basis that the words mean what they say, with amendment a matter for the legislature where a literal meaning produces an unintended result, the weight of authority is in favour of a construction that produces a meaning consistent with the whole of the particular statute and its purpose.

56. If s 27(1)(c) is taken to exclude air carriage where the place of take-off is the same as the place of destination, the basis of liability arising from air travel within the Territories, and that between the Territories and those states with a provision in similar terms to that enacted by s 4 of the NSW Act, would be different. Some carriages within a Territory would be caught by the Act, but some would not. Those would be outcomes that could or would lead to unfairness and injustice.

57. For example, the CACL Act would not apply to a crop dusting flight both leaving from and returning to a farm runway in the Northern Territory, which carried a passenger (within the meaning of the Act) taking advantage of the flight for sightseeing. The Act would apply to the passenger if the crop dusting flight took off from the farm runway, but ended in the nearest town, where the plane was hangered.

58. The state equivalent of the CACL Act would apply to a flight which departed Bankstown Airport, flew over Sydney Harbour to give its passengers a view of the Opera House and other notable sights, and returned to land at Bankstown Airport. It would not apply to a flight that departed Darwin Airport, flew out over the northern islands for sightseeing purposes, and returned to land at Darwin.

59. Inconsistencies of this nature cannot have been intended by the legislature.

60. If s 27(1)(c) is given its literal meaning, there would be other anomalies, within the application of the Act itself. As the defendant pointed out, an example relates to s 26. Section 26 of the CACL Act uses the same phrase in the definition of “domestic carrier” as is the subject of the present controversy; it should be construed consistently with s 27(1)(c). If that construction was based upon the words used without reference to context and purpose, some intra-territorial carriers would be “domestic carriers”, whilst others would not. The consequences of that would be anomalous, and not consistent with the purpose of the Act.

61. This is an outcome which cannot have been intended.

62. Finally, regard must be had to the principle of comity. The majority in Mount Beauty having construed s 27 in a purposive way, this Court should not depart from that approach unless convinced that the Victorian Court of Appeal is plainly wrong. That is a conclusion the Court cannot reach.

63. I would thus determine the separate question as follows: any liability in respect of the injuries sustained by the plaintiff arises under the CACL Act, in substitution for any civil liability under the common law.

ORDERS

64. The orders of the Court are:

1. The separate question to be determined is answered as follows: Any liability in respect of the injuries sustained by the plaintiff arises only under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), and is in substitution for any civil liability of the defendant under the general common law.

2. Costs of the Notices of Motion are to be each party’s costs in the proceedings.

3. The listing of the matter before the Registrar today for directions is noted. The balance of the file is to be provided by my Chambers to the Registrar forthwith.

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Decision last updated: 20 October 2020